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[2018] ZALCJHB 210
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Ratlou Local Municipality v South African Local Government Bargaining Council (SALGBC) (JR751/2015) [2018] ZALCJHB 210 (20 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 751 /2015
In
the matter between:
RATLOU
LOCAL
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
(SALGBC)
First
Respondent
S
MODIBA
N.O
Second
Respondent
SAMWU
obo PAPIE
CHASE Third
Respondent
Heard:
25 April 2018
Delivered: 20 June 2018
Summary: Review
application. Arbitrator’s findings that dismissal was unfair is
not to be interfered with on review.
JUDGMENT
PRINSLOO, J
Introduction
[1]
There are two applications before me. The
first is a review application (JR 751/15) wherein the Applicant seeks
to review and set
aside an arbitration award issued on 23 March 2015
under case number NWD111403 where the Second Respondent (the
arbitrator) found
Mr Chase’s (the employee) dismissal
substantively and procedurally unfair and ordered his reinstatement.
[2]
The
second is an application (J1075/15) in terms of the provisions of
section 158(1)(c) of the Labour Relations Act
[1]
(LRA) wherein the Third Respondent seeks an order to make the same
arbitration award an order of Court.
Background facts
[3]
The employee commenced employment with the
Applicant in May 2012 as a skills development facilitator. The
employee was dismissed
on 8 September 2014, following a termination
letter after he was ‘absent from duty without permission for a
period of 17
days and failed to give acceptable reasons for such
absence.”
[4]
The Third Respondent subsequently referred
an unfair dismissal dispute to the First Respondent and the matter
was arbitrated on
16 March 2015.
The evidence adduced:
[5]
The issue to be decided by the arbitrator
was whether the employee’s dismissal was substantively and
procedurally fair.
[6]
In order to assess the arbitrator’s
findings in respect of substantive and procedural fairness and the
award he issued, it
is necessary to consider the reason the employee
was dismissed for, namely abscondment, and the evidence adduced at
the arbitration
proceedings.
[7]
The Applicant’s first witness, Mr
Seleke, is the manager in the office of the mayor and he testified
that on 2 September 2014
there was an illegal march and he saw the
employee at the taxi rank, being part of the group of community
members protesting against
the municipality. Mr Seleke was unable to
testify as to the number of days the employee was absent from work
and he confirmed that
he only saw the employee on this one occasion.
Mr Seleke was unable to say whether the employee reported for work on
the said day
and he had no knowledge of whether the employee
absconded or not.
[8]
Mr Mbana, the Applicant’s human
resources manager, testified that the employee reported to him. He
testified about the letter
dated 8 September 2014, addressed to the
employee, which letter is a notice of termination of service due to
abscondment from duty.
The letter informed the employee that his
employment contract was terminated with immediate effect due to the
fact that he had
been absent from work without permission for a
period of 17 days and he failed to give acceptable reasons for such
absence.
[9]
Mr Mbana testified that the employee was
dismissed because he was absent from work for 17 days. Mr Mbana tried
to call the employee
twice, but his mobile phone was off. He also
went to the employee’s place of residence in Madibogo, but he
could not find
him there. When the employee returned to work, he was
asked about his whereabouts and the employee indicated that he was
not well
and he submitted a medical certificate. During his absence,
the employee did not report that he was sick, but only reported that
upon his return to work.
[10]
Mr Mbana explained that in terms of the
Applicant’s leave policy the employee has to report before
10:00 that he was not coming
to work and when he returned to work, he
had to submit a medical certificate. The employee failed to report
his absence in accordance
with the said leave policy.
[11]
In cross-examination Mr Mbana confirmed
that the employee was dismissed because he did not report that he
would not come to work
and because he was absent from duty for 17
days. He only reported when he returned to work and the Applicant was
unaware of his
whereabouts.
[12]
Mr Mbana confirmed that the days the
employee was absent from work were from 12 – 15 August 2014, 18
August 2014, 21 and 22
August 2014, 25 to 29 August 2014 and 1 to 5
September 2014, which is a total of 17 days.
[13]
The employee submitted a medical
certificate for the period 26 – 28 August 2014 and the
Applicant did not take issue with
the medical certificate
per
se
, but insisted that the problem was
that the employee did not inform the Applicant that he would be
unable to report for duty on
those dates.
[14]
The employee also submitted a medical
certificate indicating that he was not fit for duty from 2 – 5
September 2014. Mr Mbana
conceded that it was not correct to say that
the employee was absent without a valid reason for this period, as he
was booked off
sick. He conceded that for seven of the 17 days the
employee was declared medically unfit for work.
[15]
Mr Mbana agreed that as at September 2014
the employee had 35 days’vacation leave and 54 days sick leave
available. As to
why the Applicant did not deduct the 17 days that
the employee was absent from work from his available leave credits,
Mr Mbana
explained that it was not deducted because the employee has
a tendency of not coming to work and that is why the Applicant
decided
to dismiss him.
[16]
Mr Mbana conceded that no letter was issued
to the employee, as provided for in the disciplinary code, to
establish his whereabouts
and to inform him of his abscondment. The
disciplinary code also provides that if an employee reports for duty,
he should be afforded
an opportunity to make representations prior to
a decision to terminate his services. The employee was dismissed on
the same day
he reported for duty.
[17]
It is evident from Mr Mbana’s
evidence that his understanding is that the employee has absconded
because he did not report
for duty on certain dates.
[18]
The Applicant’s last witness, Mr
Ntutane, testified that he is employed as a waste removal officer and
he saw the employee
on 2 September 2014 participating in a protest.
[19]
The employee testified and referred to the
termination letter wherein it is alleged that he was absent from work
from 12 –
15 August 2014, 18 August 2014, 21 and 22 August
2014, 25 to 29 August 2014 and 1 to 5 September 2014. The employee
testified that
he was at work from 12 – 25 August 2014, he was
on sick leave from 26 – 29 August 2014, he was at work on 1
September
2014 and from 2 - 5 September 2014, he was on sick leave.
[20]
The employee denied that he absconded for a
period of 17 days. He further denied that he was given an opportunity
to make representations
prior to his dismissal.
[21]
In cross-examination the authenticity of
the employee’s medical certificates was challenged and it was
disputed that he was
at work on the dates as per his evidence. The
employee was able to recall specific events that happened at work on
the dates he
claimed to be at work.
The arbitrator’s
findings
[22]
In his analysis of the evidence, the
arbitrator considered the fact that the employee was dismissed
following a termination letter
dated 8 September 2014. The procedure
provided for in the disciplinary code was not followed and no hearing
was held. The employee
was not afforded an opportunity to explain his
absence prior to his dismissal and had he been afforded the
opportunity, he would
not have been dismissed. The arbitrator found
the employee’s dismissal to be procedurally unfair.
[23]
In respect of substantive fairness, the
arbitrator recorded that the employee was dismissed because he
absconded. Clause 10.1 of
the disciplinary code provides that ‘in
the event that the employee has absconded himself for a period of
more than ten (10)
days without notification to the employer, such an
employee shall be deemed to have absconded from duty.’
The arbitrator
accepted the employee’s version and account for
the days the Applicant alleged that he absconded, but when he was in
fact
either at work or on sick leave and found that the employee did
not stay away from work for more than 10 days, therefore there can
be
no abscondment.
[24]
The arbitrator observed that in a case of
abscondment the employer has to show that the employee who is absent
from work, has no
intention to return to work, which was not the case
in casu
where
the Applicant rather charged the employee for not being present at
work on specific dates.
[25]
The arbitrator concluded that the Applicant
was unable to prove abscondment and it had no valid reason to dismiss
the employee.
The employee was reinstated retrospectively.
The grounds for review
[26]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable or not. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[27]
The
Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[3]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[28]
The
review Court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors and then determine whether a failure by the
arbitrator to deal with it is sufficient to set the award aside.
This
piecemeal approach of dealing with the award is improper as the
reviewing Court must consider the totality of the evidence
and then
decide whether the decision made by the arbitrator is one that a
reasonable decision maker could make
[4]
.
[29]
It is trite that an applicant’s case
should be made out in the founding affidavit. In a review application
the applicant can
file a supplementary affidavit to supplement the
grounds for review introduced in the founding affidavit.
[30]
In the founding affidavit the Applicant
raised the following grounds for review: the arbitrator committed
misconduct by failing
to take into consideration the whole of the
evidence the Applicant presented to him, the arbitrator misconstrued
the Applicant’s
case by concluding that the Applicant should
have charged the employee with absenteeism and not dismiss him with
desertion and
that the arbitrator committed misconduct by concluding
that the employee was dismissed without allowing him an opportunity
to appeal.
[31]
Mr Eastes for the Third Respondent argued
that no case is made out for review in the Applicant’s founding
affidavit and therefore
the Applicant cannot succeed with this review
application.
[32]
An analysis of the grounds for review
raised in the founding affidavit shows that the grounds for review
were not properly considered
and drafted with due consideration of
the arbitration award and that the applicable test was not considered
at all, alternatively
it indicates that the arbitration award and the
arbitrator’s findings were not understood.
[33]
The Applicant accuses the arbitrator of
committing misconduct by failing to take into consideration the whole
of the evidence the
Applicant presented to him, without any
substantiation of what evidence presented was not taken into
consideration. The allegation
is vague, unsubstantiated and without
merit.
[34]
The Applicant’s allegations that the
arbitrator misconstrued the case by concluding that the Applicant
should have charged
the employee with absenteeism and not dismiss him
for desertion and that the arbitrator concluded that the employee was
dismissed
without allowing him an opportunity to appeal, show that
the award was not properly understood as those were not findings made
by the arbitrator.
[35]
In
Northam
Platinum Ltd v Fganyago NO and others
[5]
it was held that:
'In my view, the law is
very clear that a ground for review raised for the first time in
argument cannot be sustained. The basic
principle is that a litigant
is required to set out all the material facts on which he or she
relies in challenging the reasonableness
or otherwise of the
commissioner's award in his or her founding affidavit.
[36]
In the founding affidavit and the grounds
for review raised therein, the Applicant failed to make allegations
to sustain its application.
There is not a single challenge to the
reasonableness of the arbitrator’s findings or the outcome of
the arbitration proceedings.
[37]
The Applicant filed a supplementary
affidavit and supplemented its grounds for review. Firstly by stating
that the award is reviewable
as it does not contain any reasons why
the employee’s dismissal was substantively unfair. This ground
for review is without
merit as the arbitrator dealt with the issue of
substantive fairness in paragraphs 37 – 43 of the arbitration
award and the
reason why the employee’s dismissal was
substantively unfair, is recorded. This ground for review is yet
another vague and
unsubstantiated ground for review.
[38]
Secondly, it is trite that dishonesty
justifies summary dismissal.
In casu
it was sufficiently proven that the employee was dishonest and that
he was a serial absconder who abused his right to sick leave,
wherefore summary dismissal was justified. The arbitrator ought to
have found that the employee, claiming to be sick but able to
attend
a service delivery protest on 2 September 2014, was not sick but used
illness as an excuse to be absent from work.
[39]
There are a number of difficulties with
this ground for review, all indicative of the Applicant’s lack
of understanding of
a review process before this Court.
[40]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and others
[6]
the
Labour Appeal Court held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal’.
[41]
The Applicant did not charge or dismiss the
employee for dishonesty or abuse of sick leave, nor was any such
evidence presented
or such version put to the employee in
cross-examination during the arbitration proceedings. The arbitrator
had to determine whether
the employee’s dismissal due to
abscondment was fair. To expect the arbitrator to find that the
employee abused his sick
leave, supports the arbitrator’s
finding that the case was not one of abscondment, but rather one of
being absent without
authorisation.
[42]
The Applicant presented no case in respect
of dishonesty or that the employee was a ‘serial absconder’
who abused his
sick leave. In any event, in the case of abscondment,
the employee must have an intention not to return to work, which is
different
from an employee abusing sick leave.
[43]
The arbitrator cannot be faulted for
findings he did not make on issues he was not required to decide or
on evidence that was not
placed before him.
[44]
There is no merit in the grounds for review
raised in the supplementary affidavit.
[45]
If the Applicant experienced attendance or
leave abuse issues with the employee, it is within the employer’s
prerogative to
address those issues, on the proviso that it does so
in compliance with its policies and procedures. In this instance
however,
the issue was clearly not one of abscondment.
[46]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before him. I have considered
this question after perusal of the transcribed record, the
arbitration award and the grounds
for review raised by the Applicant.
In my view the arbitrator’s findings are reasonable based on
the evidence that was placed
before him and there is no reason for
this Court to interfere with it on review.
[47]
It follows that the application for review
stands to fail.
[48]
The Third Respondent’s section
158(1)(c) application is opposed because of the fact that the
arbitration award was subject
to review. The review application
failed and there is no other reason why the arbitration award cannot
be made an order of Court.
Costs
[49]
This Court has a wide discretion in respect
of costs, considering the requirements of law and fairness.
[50]
In
Zungu
v Premier of Kwazulu-Natal and others
[7]
the
Constitutional Court confirmed the rule that costs follow the result
does not apply in labour matters, but that the Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court and have their disputes dealt
with and,
on the other hand allowing those parties to bring to this Court cases
that should not have been brought to Court in the
first place.
[51]
This is a case where the Court has to
strike a balance, considering the requirements of law and fairness.
[52]
Mr Eastes argued that this is a case where
a cost order is justified, considering the conduct of the Applicant
when it persisted
with the employee’s dismissal,
notwithstanding the fact that he submitted medical certificates and
the fact that his services
were terminated without affording him any
pre-dismissal procedure. Mr Eastes’ arguments are not without
merit.
[53]
The Applicant submitted that there should
be no order as to costs. The Applicant followed the procedure as they
understood it. This
argument is far from convincing.
[54]
In casu
the
Third Respondent was compelled to engage in litigation and oppose a
meritless application. A cost order is a method of ensuring
that
decisions to litigate in this Court are taken with due consideration
of the law and the prospects of success. A review application
is not
the next automatic step after arbitration and the practice to review
arbitration awards where the decision or the outcome
is reasonable,
should be discouraged.
[55]
In the premises, I make the following
order:
Order
1.
The application for review is dismissed
with costs.
2.
The arbitration award issued on 23 March
2015 under case number NWD 111403 is made an order of Court.
______________
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
Applicant: Advocate
Mashele
Instructed by: Leepile
Attorneys
Third Respondent:
Advocate J Eastes
Instructed by: Maenetja
Attorneys
[1]
Act
66 of 1995, as amended.
[2]
2007
28 ILJ 2405 (CC) at para 110.
[3]
(2014)
35 ILJ 943 (LAC).
[4]
(2014)
35 ILJ 943 (LAC) at paras 18 and 19.
[5]
(2010)
31
ILJ
713 (LC)
at
para
27
.
[6]
(2008)
29 ILJ 964 (LAC).
[7]
(2018)
39 ILJ 523 (CC).